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Supreme Court 17 February 2005

CURRIE v. KIM

[2005] NSWSC 188

Other
TWO ALTERNATIVE CHARGES DISMISSED FINED PROSECUTOR TO RECEIVE MOIETY DEFENDANT TO PAY COSTS SUMMARY PROSECUTION ILLEGAL FISHING

Citation: Currie v Kim [2005] NSWSC 188
Court: Supreme Court of New South Wales (Common Law Division)
Date: 17 February 2005
Judge(s): Greg James J

Background

The prosecutor, a NSW Fisheries officer, brought ten summary proceedings against the defendant, a recreational abalone diver, arising from two separate incidents on 1 May 2004 and 17 May 2004 at coastal waters including the vicinity of Horseshoe Bay. The charges covered a range of conduct: possessing undersized abalone, exceeding bag limits, failing to pay a fishing fee, shucking abalone adjacent to waters, and obstructing fisheries officers.

The defendant did not appear and was not represented at the hearing. The court proceeded in his absence. The evidence disclosed that the defendant had prior convictions for similar illegal fishing offences dating back to 1991, including matters dealt with at Gosford Local Court and Bega Local Court, and his visa had since been revoked and he had returned to Korea.

The prosecutor elected not to offer evidence on two of the ten charges, leaving eight matters for determination.

  • Whether abalone constituted "fish" within the meaning of the Fisheries Management Act 1994 so as to engage the prohibition on possession of prohibited size fish under s 16(1)
  • Whether the defendant possessed undersized abalone (below the 11.5 cm minimum) on each of the two dates
  • Whether the defendant's possession of 101 abalone on 1 May and 160 on 17 May exceeded the bag limit of 10 under s 18
  • Whether the defendant failed to pay the required recreational fishing fee on each occasion under s 34J
  • Whether emptying a bag of abalone into a rock pool after being directed not to do so by officers constituted obstruction of a fisheries officer under s 247
  • Whether shucking abalone in or adjacent to waters contravened cl 130 of the Fisheries Management (General) Regulation 2002

Decision

The court found that abalone (haliotis rubra, black-lipped) fell within the statutory definition of "fish" under s 5 of the Act as aquatic molluscs. The minimum size for that species under the regulations is 11.5 centimetres. The evidence established that all but one abalone found in the defendant's possession on each date were below that measurement, satisfying the elements of the s 16(1) offence on both occasions.

On the bag limit charges, the court found the defendant possessed 101 abalone on 1 May and 160 (including five shucked) on 17 May, far exceeding the permitted possession limit of 10. Both s 18 offences were proved beyond reasonable doubt. On the fishing fee charges, a certificate tendered in evidence established that the defendant had not paid the required fee, and his responses to officers and failure to produce a receipt confirmed guilt under s 34J(1) on both dates.

Regarding obstruction, the evidence showed that after officers observed the defendant with diving gear and a bag appearing to contain fish, they directed him not to empty the bag. He then emptied the abalone onto rocks and kicked them into an adjacent rock pool. The court found this plainly constituted obstruction of fisheries officers exercising their duties under the Act. The defendant was also convicted of shucking abalone adjacent to waters, contrary to cl 130 of the Regulation.

On sentence, the court noted the defendant's significant prior history of identical offending across more than a decade, his awareness of the law, and the plainly deliberate nature of the conduct. The court characterised the legislation as passed for the protection of NSW fisheries' biological resources.

Orders Made

  • Two summonses (proceedings 11755/04 and 11760/04) dismissed with no order as to costs, as the prosecutor offered no evidence
  • Defendant convicted on eight charges of illegal fishing
  • Fines imposed as follows:
  • Possession of prohibited size fish (two charges): $2,000 each
  • Possession in excess of bag limit (two charges): $2,000 each
  • Failure to pay fishing fee (two charges): $1,000 each
  • Obstruction of fisheries officer (one charge): $5,000
  • Shucking abalone adjacent to waters (one charge): $1,000
  • Defendant ordered to pay the prosecutor's costs of $20,000
  • One half of each fine directed to be paid to the prosecutor by way of moiety
  • Matter stood over for mention on 3 March 2005 regarding related proceedings involving the defendant's wife

Key Takeaways

  • Abalone (haliotis rubra) qualifies as "fish" under s 5 of the Fisheries Management Act 1994, engaging the prohibition on possession of prohibited size fish and the bag limit provisions.
  • Under s 34J(3) of the Act, a person found in possession of fishing gear on, in, or adjacent to waters is conclusively presumed to be taking fish from those waters, which anchors the obligation to hold a valid fishing fee receipt.
  • Physically emptying a bag of abalone into a rock pool in direct defiance of a fisheries officer's instruction constitutes obstruction under s 247, even where the defendant was otherwise cooperative with officers after the act.
  • Summary proceedings may proceed in the defendant's absence where the evidence before the court is sufficient to establish each element of the charged offences beyond reasonable doubt.
  • A defendant's prior convictions for the same category of offending are relevant to sentence, particularly where they demonstrate deliberate and repeated disregard for laws protecting a shared natural resource.

Legislation and Cases Referenced

Legislation:
- Fisheries Management Act 1994 (NSW), ss 5, 16(1), 18, 34D, 34J, 247
- Fisheries Management (General) Regulation 2002 (NSW), cls 9, 12, 130

Cases cited: None identified in the judgment or metadata.